The possibility of a Britain Exit (BREXIT) from the EU was first taken seriously following a victory for the Conservative Party in the general election back in May 2015 as a referendum was a key policy in their manifesto. There has since been plenty of discussion on the implications for Intellectual Property. Now that a date has been set for the EU referendum, it seems like good opportunity to re-visit the discussion and look at the possible consequences.
A UK exit from the EU is a definite possibility, with the latest polling results showing only a 51% vote in favour of remaining in the EU. Should a BREXIT happen, the result could affect two key areas within IP: The Unitary Patent and United Patent Court, and existing EU trade mark and design rights.
The UP and UPC
You may have noticed my recent blog post on the CIPA Journal Special Edition about the Unitary Patent and United Patent Court. When it comes into effect, the UPC will act as a system to centralise enforcement of a patent granted by the EPO. The UPC is set to be the biggest change to the patent system in Europe since the EPO opened in 1977. However, a BREXIT could delay a decision on the UPC agreement, effectively putting it on hold.
People have been waiting in anticipation of the UPC coming into force for years now, the agreement of which was signed back in early 2013. Initially the target date for the UPC was early 2015 but it seems that further delays have pushed this date back, with a possible BREXIT only delaying the process further.
For the UPC system to go ahead without further delay, it must be ratified by the three EU members who hold the most European Patents, namely the UK, Germany and France. If the UK leave the EU following the referendum, we can no longer ratify the process. In principal, this would not be an issue as either Italy or the Netherlands could take the UK’s place in the process. A BREXIT would therefore not topple the UPC agreement, but simply delay the process.
Questions may be raised over the attractiveness of the UPC if the UK was not a part of it. Without containing one of the major European economies, the UPC would presumably be seen as weaker to other member states. Furthermore one of the three branches of the Central Division of the UPC is based in London and could still remain there if Britain was to leave the EU. It simply makes no sense for the UK to host a section of the central division if it were not participating at all in the UPC. However it does mean that that British European Patent Attorneys would still be able to represent parties before the London central division.
CTM’s and RCD’s
There are thousands of Community Trade Marks (CTM’s) and Registered Community Designs (RCD’s) in the UK that cover the EU. A withdrawal from the EU would therefore mean that all CTM’s and RCD’s would no longer be covered, meaning a transfer process would have to be set up. Separate applications would have to filed in the UK for all future RCD’s and CTM’s and would not cover the EU.
An important point to make at this juncture is that the EPO is not constricted by the EU. Meaning that countries are able to be parties to the EPO without an EU membership. Because of this, if a BREXIT were to happen, any patent obtained either through the EPO or UKIPO would still keep its effectiveness in the UK.
Effect on Scotland?
Having spoken with a number of Patent Attorneys on their thoughts on IP following a possible Brexit, an interesting point was made from Scotland’s point of view. According to our source it’s entirely possible that the Scottish Independent Party would push for another independence referendum with a view to seek re-entry into the EU should the UK leave, post referendum. In fact, Nicola Sturgeon has warned this would almost certainly be the case. In this instance, what would become of the UKIPO? Would Scotland require its own National Intellectual Property Office?
How Have You Prepared?
I’m sure the majority of firms have already began making the necessary changes in preparation for a possible BREXIT following the referendum on the 23rd of June.
Businesses would have ensured any unitary EU IP rights will be protected in both the EU and UK post BREXIT. Any future contracts will be made to be future-proofed to stand against any implication of a BREXIT should it happen.
It is difficult to fathom the collapse of the UPC following a BREXIT but its strength would be called into question without UK participation. In addition, the changing of EU Trade Marks and Designs to have effect within the UK post BREXIT sounds simple in theory, however this may not be the case in reality. How would this transfer be paid for? Would there be a one off fee? Would fees be reduced if the UK aren’t part of the EU?
One thing that is known is that a BREXIT will not affect the European Patent Convention (EPC) governing the current European Patent System. It would still be possible to obtain a UK Patent via the EPC system, following a decision to leave the EU.
There is a lot of speculation surrounding the effect on IP if Britain were to leave the EU, but this speculation would remain hypothetical until after the referendum. It is important to note that everything is very much up in the air at this point, and there aren’t many concrete answers yet.
The answers to many of the questions raised in this discussion would ultimately depend on the nature of a post-Brexit UK/EU relationship and the decisions made surrounding it. Watch this space…